TN reduces fee for providing DCS files to media to $34,225

AG's, child agency's positions differ on release of records

Mar. 5, 2013

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The Tennessean

State lawyers have cut by $21,000 their price tag for releasing files on children who have died or nearly died after coming into contact with the Department of Children’s Services. .

Officials now say it will cost news organizations $34,225 instead of the $55,584 originally sought for children’s records that Nashville Judge Carol McCoy ordered DCS to make public in January.

The new estimates were contained in a Chancery Court filing by Tennessee Attorney General Robert Cooper Jr. and Deputy Attorney General Janet Kleinfelter. DCS’ revised cost estimates — filed late Friday — came a day after DCS officials, media groups and the deputy attorney general gathered together to discuss the records at issue.

What emerged from the meeting were sometimes contradictory positions taken on releasing those records by the attorney general’s office and DCS officials. Kleinfelter told DCS officials not to say anything to media representatives who had traveled from as far as Memphis to meet if the meeting was not kept confidential. But DCS interim Commissioner Jim Henry and special DCS adviser Larry Martin both pledged to work with news media.

Maria De Varenne, Tennessean executive editor and vice president for news, said she was dismayed at the continued acrimony from the attorney general’s office.

“The disparity in tone between Commissioner Henry and the attorney general staff last week was remarkable as we tried to discuss DCS procedures, processes and issues,” De Varenne said. “The attorney general’s office prefers secrecy rather than openness and transparency, which could lead to statewide solutions on how DCS and communities throughout Tennessee can protect and care for children better.”

Not settlement talks

News organizations requested the meeting to talk to DCS records experts about how the agency maintains its vast array of forms, computer files, caseworker notes and other information on children and what could efficiently be retrieved from DCS electronic files versus what is contained in physical files.

“I hope that this process will reduce the effort and expense, and appreciate your helping get it set in motion,” the Tennessean’s lawyer Robb Harvey wrote to Kleinfelter in advance of the meeting, adding, “This is not a settlement discussion.”

But the meeting had barely gotten started when Kleinfelter advised Martin and Henry not to take questions from any of the media gathered around the conference table.

“We thought this was a settlement discussion,” Kleinfelter said. “It appears the tenor of this meeting has changed.”

Kleinfelter and DCS officials then left the room for 30 minutes to confer.

When they returned, Martin and Henry pledged openness with media representatives, and Martin said he would work to arrange for a meeting with DCS experts to go over the agency’s record keeping.

“We are open to that, and we’d like to have the opportunity to get people who have far better knowledge of that process together with you,” Martin said. “We don’t question your interest in the welfare of children in our state, and I hope you don’t question ours.”

By the next day, however, Kleinfelter appeared to close the door on Martin’s offer.

In a letter to Harvey, Kleinfelter said the state was not willing to provide any of the records the media organizations had proposed for discussion.

A filing with the court by Kleinfelter and Attorney General Cooper notes that “until the Petitioners (the media coalition) have indicated that they are willing to pay the costs of producing redacted copies of those records, the Department should not be required to produce any copies.”

Then Monday, Henry reiterated through a spokeswoman that he was “committed to working with media representatives to provide a better understanding of the department’s record keeping policies and practices.”

Contradictions emerge

The revised estimate filed Friday eliminated some of the earlier charges that had earned criticism from lawmakers, agency critics and proponents of transparency — charges that included $516 for rolls of whiteout tape, $11,900 to pay state workers to personally hand-deliver files, and $3,774 in paper copies for documents DCS now says it can deliver electronically.

The Tennessean and a dozen other media groups had filed suit in December, seeking access to files that would reveal more about the fate of more than 200 Tennessee children who have died or nearly died since 2009. All had some prior contact with the state’s $650 million protective agency, but little beyond that is known about what happened to them and what actions DCS took — or did not take — to protect them.

In the five months before the lawsuit, as The Tennessean repeatedly requested documents, DCS was slow to fill those requests, saying it needed time to gather the information.

Officials released one-line entry notes about each child. Pressed for more information, DCS released two- to three-sentence summaries in November that revealed no information about DCS’ role in the child’s life. DCS officials then refused to release any further details, citing privacy concerns, and news organizations filed suit.

Other contradictions between statements from the attorney general’s office and DCS officials also emerged last week.

Among the requests media groups had of DCS records experts was to provide a list of all possible records that could be stored in a child’s file.

On Thursday, Kleinfelter told media groups that a checklist of all such records is on the agency website. Despite her assertion, neither of the DCS forms Kleinfelter specifically noted — “CS-0725” and “CS-0726” — appears online.

Original claims by the attorney general’s office filed with the court stated that DCS must charge nearly $12,000 to hand-deliver records — “because these case files contain records and information that is confidential under state and federal law,” a filing said, “they must be hand-delivered to the Regional Offices in order to protect the confidentiality and integrity of these records.”

But a Tennessean report in February found that DCS routinely uses express mail to deliver case files.

In response, DCS spokeswoman Molly Sudderth said one reason files had to be hand-delivered rather than copied in regional offices and mailed was that “the field should not be making copies of these records for fear of missing information we are required to release.”

In its Friday filing, the attorney general’s office added a third reason for charging for hand delivery: Local DCS offices “do not have sufficient staff available to devote to such a project without having to divert them from their regular duties (i.e. providing services to children and families within their jurisdiction).”

Nevertheless, the attorney general submitted to the court a revised estimate without hand delivery costs, saying it had determined that it could do so if it did not have to provide all the records by a certain date.

Agency staff who routinely drive to the downtown Nashville offices can bring the files with them at no charge, the filing noted.

The agency’s original estimate included $18,000 to hire paralegals to spend three hours reviewing each case file.

The revised estimate filed Friday notes the department had purchased five licenses for such electronic redactions and would use them in redacting files.

But that left unchanged the estimate that paralegals would spend three hours reviewing and redacting each file, even with the software. Redacting children’s files in response to the court order will still cost $18,000, the attorney general estimated.